Plaintiff was a 25-year-old woman who was driving to work in a small SUV. When she approached train tracks, she noticed a train passing by, but when she came to a stop, she also noticed that the crossing arm which was supposed to stop her progress several yards back had come down parallel as opposed to perpendicular to the roadway.

As a result of the faulty crossing gate, plaintiff became confused and when the train she was waiting for passed, plaintiff proceeded into the crossing not realizing that another train was approaching in the other direction. The other train hit her at a high rate of speed throwing plaintiff and her vehicle approximately 70 feet into the air. Fortunately, plaintiff did not suffer any significant physical injuries; however, she claimed a post-traumatic stress disorder as a result of the accident.

The defense claimed that while the crossing guard apparently malfunctioned on the day of the accident, it did not have any notice of this particular failure and that the existence of a crossing guard would not have prevented this accident since plaintiff was in a hurry to get to work and would have proceeded into the intersection once the first train cleared, whether or not a crossing guard was present.

The law offices of Winer, Burritt & Scott, LLP, performed a thorough investigation which indicated that this particular crossing guard had malfunctioned in a similar manner on a significant number of occasions in the past. Rather than solving the problem, the train company merely swiveled the crossing guard back into its proper place, not taking any steps to make sure it would not again move out of place once it was hit by trucks which frequently hit the crossing guard when attempting to enter a nearby gravel yard.

In addition, the law offices of Winer, Burritt & Scott, LLP, retained multiple train and human factor experts to testify that the train company did in fact have notice of this specific crossing arm failure, because it was the duty of the engineers on the train that first passed in front of plaintiff, to report any defective condition at a crossing including defects in this crossing arm. If this defect had been reported, the train which eventually hit plaintiff would have been stopped before the intersection and the accident would not have occurred. Plaintiff’s human factor expert concluded that plaintiff would have been very confused as a result of the crossing guard being down, and despite the fact that bells and whistles were on and the opposite side crossing arm was in place, working effectively at the time of the accident, plaintiff would have reasonably assumed that once the first train passed, another train would not be traveling in the opposite direction.

RESULT: $390,000 settlement on behalf of plaintiff